Smt.Kaya Bai vs The State Of M.P.
2023 Latest Caselaw 1318 MP

                                      Cr.A, No.1623/1998
                            1



 IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR

                        BEFORE

       HON'BLE SMT. JUSTICE NANDITA DUBEY

          CRIMINAL APPEAL No. 1623 of 1998

BETWEEN:-

SMT. KAYA BAI, AGED ABOUT 32 YEARS, W/O SHRI
DAFEDAR @ DILEEP, OCCUPATION - LABOUR, R/O
VILLAGE KHAROD, POLICE STATION PANAGAR, DISTRICT
JABALPUR (MADHYA PRADESH)
                                          ....APPELLANT

(BY SHRI HITENDRA KUMAR GOLHANI - ADVOCATE AS AMICUS
CURIAE)

AND

THE STATE OF M.P. THROUGH POLICE STATION, PANAGAR,
DISTRICT JABALPUR (MADHYA PRADESH)


(BY SHRI AMIT SHARMA - GOVT. ADVOCATE)

                                          ....RESPONDENT

      Reserved on     : 29.08.2022
      Pronounced on    : 23.01.2023
                                           Cr.A, No.1623/1998

This appeal having been heard and reserved for judgment, coming on for pronouncement this day, the Court pronounced the following :

J U D G M E NT

This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 10.07.1998 passed by Seventh Additional Sessions Judge, Jabalpur (M.P.) in S.T. No. 552/1996, whereby the appellant has been found guilty for the offence punishable under Section 326 of I.P.C. and sentenced to undergo Rigorous Imprisonment for three years.

2. As per prosecution, on 04.09.1996, the complainant went to get his cycle repaired, on the way he met Jagat (son of appellant), who kicked his bicycle and pushed him in the mud, as a result of which an altercation ensued between them. Later on, the present appellant alongwith her husband came armed with lathi and kukri with intent to kill. It is alleged that they abused and assaulted the complainant. Husband of the appellant restricted him and the appellant hit him with kukri on his head, resulting in grievous injury. According to the prosecution, this incident was seen by Mohan Patel (P.W.-4) and Jeevan Patel (P.W.-7), who took Cr.A, No.1623/1998

the complainant to Police Station. Panagar and also informed the complainant's family.

3. On the basis of report by complainant Bhawani Prasdad (P.W.-2), FIR (Ex.P-1) was registered and the complainant was sent for medical examination. As per x-ray and doctor's report, complainant sustained incised wound and a defused fracture on the head.

4. During investigation, on the basis of memorandum of appellant, lathi and kukri were seized from the husband of the appellant and the appellant respectively. The seized articles were sent to FSL, Sagar.

5. After investigation, charge sheet was filed before the trial Court. On the basis of documents on record, charges under Sections 307/34 and 294 of the I.P.C. were framed against appellant alongwith her husband. The trial Court acquitted the husband of the appellant from the charges and sentenced the appellant under Section 326 of the I.P.C. and sentenced her as aforestated.

6. The prosecution examined 13 witnesses. Appellant has not examined any witness in her defence.

Cr.A, No.1623/1998

7. The trial Court convicted the appellant relying on the testimony of Bhawani Prasad (P.W.-2), S.R. Yadav (P.W.-13) and Dr. Pradeep Sharma (P.W.-12).

8. It is an admitted fact that initially an altercation happened between complainant and the son of appellant. A scrutiny of the testimony of Bhawani Prasad (P.W.-2) shows that while he was talking to the husband of the appellant, suddenly the present appellant came from behind and assaulted him with kukri, and her son (minor) hit him on the back with lathi. Statement of Bhawani Prasad (P.W.-2) was corroborated by Mohan Patel (P.W.-

4), who was the eye witness to the incident and took the complainant to the police station. Both these witnesses have remained consistent in their testimony.

9. It is also evident that prompt FIR (Ex. P-1) regarding the incident was lodged by the complainant. His MLC was done on the same day by Dr. Pradeep Sharma (P.W.-12), who found a muscle deep incised wound on the forehead. As per the X-Ray report (Ex. P-9), complainant had sustained a depressed fracture of fronto parietal bone. As per doctor's opinion, the injury was caused by sharp edged weapon within one hour of the examination. The kukri was recovered at the instance of the appellant, however, the trial Court has not found the seizure of kukri proved in view of the fact that the seizure witnesses have Cr.A, No.1623/1998

turned hostile but looking to the testimony of complainant and the eye witnesses, which is supported by the medical evidence, the trial Court has not committed no illegality in convicting and sentencing the appellant as aforestated.

10. The appellant has suffered only two days of jail sentence and her jail sentence was suspended by this Court vide order dated 29.07.1998. It would not be proper to send the appellant under custody after a long period of 24 years. Under the facts and circumstances, the conviction of the appellant is upheld, however, her sentence is reduced to the period already undergone by her. However, to meet the ends of justice, instead a fine amount of Rs.15,000/- is imposed on the appellant, that is to be deposited within two months failing which the appellant shall suffer the jail sentence. After recovery of the fine amount, Rs.10,000/- be paid as compensation to the complainant/victim.

11. The appeal is partly allowed in the aforesaid terms. Appellant is on bail. Her bail bonds stands discharged.

(Nandita Dubey) Judge 23/01//2023 gn Digitally signed by SMT. GEETHA NAIR Date: 2023.01.24 12:01:37 +05'30'